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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Russell v. Virg-In (7/22/2011) sp-6580
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SANDRA RUSSELL, for and on)
behalf of J.N., a Minor Child, ) Supreme Court No. S-13537
)
Appellant, ) Superior Court No. 2KB-05-00023 CI
)
v. ) O P I N I O N
)
CORPORAL LEE VIRG-IN and ) No. 6580 - July 22, 2011
THE CITY OF KOTZEBUE, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Second Judicial District, Kotzebue, Michael I. Jeffery, Judge.
Appearances: Ted Stepovich, Law Office of Ted Stepovich,
Anchorage, for Appellant. Joseph W. Evans, Law Offices of
Joseph W. Evans, Bremerton, Washington, for Appellees.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers,
Justices. [Christen, Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
In July 2003 Officer Lee Virg-In used a taser two times on J.N., an 11-year-
old girl. J.N. had been driving an ATV through the streets of Kotzebue with another
young passenger. J.N. ran several stop signs and was otherwise driving dangerously, and
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Officer Virg-In used overhead lights and a siren to signal to J.N. to stop. J.N. refused to
stop, first trying to escape on the ATV and later fleeing on foot. Officer Virg-In chased
J.N. on foot and caught up with her. According to J.N., she was never aggressive or
threatening towards Officer Virg-In, and she had already stopped running and was no
longer attempting to flee when Officer Virg-In deployed his taser. He first shot the
probes and caught them on J.N.'s jacket and then grabbed J.N. by the elbow and shocked
J.N. on the shoulder with the taser as he held onto her elbow. Officer Virg-In then
handcuffed J.N. and took her to the police station.
J.N., through her mother Sandra Russell, filed a complaint against Officer
Virg-In, alleging that his use of the taser constituted excessive force. J.N. also sued the
City of Kotzebue, claiming improper and negligent supervision or training. Officer
Virg-In defended the reasonableness of his actions and argued that he was immune from
suit. On summary judgment, the superior court found that Officer Virg-In was entitled
to qualified immunity because a reasonable officer might not have known that the use of
a taser under the circumstances would be an excessive use of force. The superior court
also dismissed J.N.'s claims against the City based on Officer Virg-In's entitlement to
qualified immunity. Finally, the superior court awarded attorney's fees and costs to
Officer Virg-In and the City, assessing the fees and costs against Russell.
We conclude that it was error to grant Officer Virg-In qualified immunity
on summary judgment because if a police officer used a taser multiple times on an
11-year-old girl who was suspected of traffic violations, was compliant, and was not
posing a threat to the officer or others, that conduct could be so egregious that any
reasonable officer would have known that the conduct was an excessive use of force. We
also reverse the grant of summary judgment dismissing J.N.'s improper and negligent
training or supervision claims against the City of Kotzebue.
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II. FACTS AND PROCEEDINGS
A. Factual History1
On the night of July 29, 2003,2 Kotzebue police officer Corporal Lee
Virg-In used an Advanced Taser (taser) while arresting 11-year-old J.N. The incident
began earlier in the evening when, while driving in a marked police department vehicle,
Officer Virg-In and his partner Officer Eric Swisher saw J.N. driving an ATV at
approximately 30-35 m.p.h. through the streets of Kotzebue with a young female
passenger. Officer Virg-In's incident report states that J.N. was five feet tall and weighed
100 pounds, which the report describes as a "slender" build. The officers saw J.N. run
a stop sign and turned on their overhead lights and siren to signal to J.N. to stop. J.N.'s
passenger turned and saw the police vehicle, but J.N. drove off, eluding the officers.
About an hour later, the officers again spotted J.N. on the ATV, saw her go through a
stop sign, and turned on their overhead lights and siren. J.N. again drove away from the
officers, going an estimated 35-40 m.p.h. and failing to stop at two more stop signs. J.N.
then drove the ATV off the street and through a field, emerging from behind a building
and nearly hitting the officers' police vehicle head on - both vehicles veered around
each other to prevent a collision. J.N. drove back onto the street, but her ATV stalled.
Both girls left the ATV and started running away from Officer Virg-In on foot. Officer
Virg-In got out of his vehicle, began chasing the girls, and yelled for them to stop. J.N.
continued to run, and Officer Virg-In continued to chase her and yell for her to stop.
1 We interpret the facts in the light most favorable to J.N. as the non-moving
party and draw all reasonable inferences in her favor. See Sheldon v. City of Ambler, 178
P.3d 459, 461 (Alaska 2008) (citing Samaniego v. City of Kodiak, 2 P.3d 78, 82-83
(Alaska 2000)).
2 Appellant's brief and the superior court opinion state that the date of the
taser incident was July 29, 2005, but the incident actually occurred on July 29, 2003.
J.N. filed her complaint in February 2005.
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According to J.N., she ran between three female teenagers on the street and
was stopped by one of them. She testified that she "stopped right away" and was "face
to face" with Officer Virg-In, "wait[ing] for him" as he came within two or three feet of
her and deployed the taser's probes.3 J.N. described the incident:
I went around [the senior center buildings] and. . . [another
girl] grabbed me. I stopped. I was tired. Virg-In was right
behind me. I turned around and I saw him. He pulled out his
gun, and a whole - a couple of wires came out, you know,
a couple strings. One caught my coat. The other - the other
one caught my chest. I asked him what he did that for and
then he shocked me. The first one happened so fast, but then
the second time he put it to my shoulder.
J.N.'s passenger confirmed in an affidavit that she saw Officer Virg-In
"shoot" J.N. with the taser and then "walk up to [J.N.] and touch [t]aser [J.N.] again and
she fell to the ground." The passenger agreed with J.N.'s testimony that J.N. was "not
running away at the time that Officer Virg-In used the [t]aser on [J.N.]." Officer Virg-In
acknowledged that when he used the taser the second time he was holding onto J.N.'s
elbow and was also shocked by the current when he touch-tasered J.N.
Officer Virg-In then handcuffed J.N. and took her to the Kotzebue police
station. Another officer examined J.N. and noted that her coat had one taser probe still
embedded in it and that there was a small red mark on J.N.'s upper right chest. J.N. was
3 Variously referred to as "probes," "darts," "wires," or "harpoons," these are
"two metal probes [that] are propelled . . . from a replaceable cartridge"; they "have the
appearance of small, straightened fish-hooks . . . [and are] connected to the weapon by
a fine insulated wire." Operationally, "[w]hen both probes contact the target, the device
automatically delivers several seconds of electric current . . . designed to affect the motor
nervous system and muscles, causing physical incapacitation." Deploying these probes
is an alternative to using a taser in the "direct contact stun mode," which is a pain
compliance technique.
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later adjudicated a delinquent minor for the misdemeanor offense of "failure to stop at
the direction of a peace officer in the second degree."
As to her injuries, J.N. testified that when the taser probes hit her she "got
really stiff" and when Officer Virg-In touched her with the taser, she "collapsed." She
stated that she was shocked with the taser "for a good minute . . . you could feel it . . .
pulsing." J.N. described that after she was touched with the taser, "[i]t burned at first"
and then she "could see [her] vein come out. It was darker." She elaborated that she hurt
for a "couple of days" and that she had trouble sleeping on the night of the incident
because she woke up with nightmares. J.N. admitted that after a "couple" of days she
was "okay" and that the pain "slowed down" and was gone after three or four days. But
J.N. still had nightmares and trouble sleeping that occurred "once in a while" over the
next three years. In these nightmares, J.N. testified, she would see "a guy in a uniform"
who would chase her as she ran from him; sometimes the figure in the dream would
handcuff her and leave her on the ground and once she dreamed that she was taken to jail.
J.N. never took any medication for her sleeping issues and never saw a counselor or
doctor for the problem.4
J.N. maintained that Officer Virg-In knew who she was and knew where she
lived and thus "could have easily avoided the use of force by waiting and picking her up
at home." She noted that "Kotzebue is a very small place, it is isolated." Moreover, J.N.
argued that she was not "wanted because of a serious or violent felony crime."
4 The connection between the taser incident and J.N.'s emotional and mental
injuries was highly contested in the superior court. For purposes of a summary judgment
review, however, we view the facts relating to J.N.'s alleged injuries in the light most
favorable to J.N. See supra note 1.
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B. Proceedings
On February 17, 2005, J.N.'s mother Sandra Russell filed a complaint "by
and for" J.N. as a minor child. The complaint alleged that Officer Virg-In "apprehended
and arrested [J.N.] using excessive unnecessary force, stunning [J.N.] twice with a stun
gun with no justification for the use of such excessive force . . . causing her injury and
great pain."5 J.N. also alleged that the City "improperly and negligently supervised or
trained" Officer Virg-In in the appropriate use of force. J.N. sought damages against
Officer Virg-In and the City, "jointly and severally for the same injury" plus costs,
interest, and attorney's fees, and requested punitive damages against Officer Virg-In.
Officer Virg-In and the City answered J.N.'s complaint, denying J.N.'s allegations and
raising several defenses. Among other assertions, Officer Virg-In claimed that he had
"a qualified privilege to use reasonable force in making an arrest . . . [and] immunity
based upon objective reasonableness."
On August 27, 2008, Officer Virg-In and the City moved to dismiss all of
J.N.'s claims on summary judgment.6 Citing post-2003 case law, Officer Virg-In argued
that "[t]he use of a [t]aser to subdue an unruly, fleeing juvenile is a proper use of force
5 It is unclear whether J.N. intended to raise federal constitutional torts under
42 U.S.C. § 1983 along with state law tort claims. Like most courts, we do not require
litigants to specify that they are suing under § 1983. See Fairbanks Corr. Ctr. Inmates
v. Williamson, 600 P.2d 743, 747 (Alaska 1979) (concluding that a complaint stated a
cause of action under § 1983 based on "[c]ombining the broad purposes of 42 U.S.C.
§ 1983 to provide a cause of action upon allegations of facts constituting deprivation
under color of state authority of federal constitutional rights with the liberal pleading
provisions of Alaska Rule of Civil Procedure 8"). See generally SWORD AND SHIELD
REVISITED: A PRACTICAL APPROACH TO SECTION 1983 122 (Mary Massaron Ross ed.
1998). At oral argument, counsel for J.N. stated the he did not believe that any § 1983
claims had originally been alleged, but added that he was not waiving such claims.
6 Before the motion for summary judgment was filed, the case had been
substantially delayed due to the death of J.N.'s attorney in June 2006.
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and does not constitute excessive force." In addition, Officer Virg-In contended that he
was entitled to qualified immunity because "no cognizable legal precedent" would have
put him "on notice that the use of a [t]aser in this situation was prohibited, unlawful
conduct for a police officer." Officer Virg-In and the City also maintained that J.N.'s
claim against the City should be dismissed based on Officer Virg-In's entitlement to
qualified immunity and on the merits.
J.N. opposed the summary judgment motion on September 29, 2008. She
responded that "there is no requirement that there be a specific case on point that would
have led Officer Virg-In to believe that use of a [t]aser in this situation was excessive."
J.N. maintained that the law "was clearly established in July 2003" that "it would be []
excessive use of force to use a [t]aser on a juvenile that posed little or no threat to the
Officer or third parties." J.N. also argued that there were issues of fact precluding
summary judgment as to "whether the City failed to properly train Virg-In by having a
written policy governing [t]aser use and reviewing that written policy with its officers"
and also regarding "whether Virg-In violated plaintiff's constitutional right to be free
from the unlawful use of excessive force." The superior court heard oral argument on
December 5, 2008.
On April 9, 2009, the superior court issued an order granting Officer
Virg-In's and the City's motions for summary judgment. The superior court concluded
that it was "undisputed that Officer Virg-In's effort to stop [J.N.] was within the scope
of his discretionary authority." The court then considered: (1) the objective
reasonableness of Officer Virg-In's actions; and (2) "whether 'clearly established' law
existed to inform him of applicable constitutional standards for this situation." The
superior court described the relevant circumstances, viewing the facts in J.N.'s favor:
Officer Virg-In used a taser twice on an 11-year-old girl who had already stopped; who
had ceased her attempt to escape; and who had not used any aggressive or threatening
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behavior to escape arrest. In these circumstances, the superior court found "triable issues
of fact as to the objective reasonableness of the officer's actions" and denied summary
judgment on this point.
Nonetheless, the superior court ultimately determined that Officer Virg-In
was entitled to qualified immunity because no clearly established law in July 2003 would
have put him on notice that his conduct was unlawful. The superior court first
determined that the two Alaska statutes related to use of force were insufficient to notify
Officer Virg-In that the use of a taser to arrest an 11-year-old suspect was unlawful.7
Looking to case law, the superior court found that the cases presented by J.N. were "quite
distinguishable" and that it was " 'telling' that neither party could provide authority prior
to July 2003 as to the use of [t]asers on young people." Taking note of J.N.'s "reckless[]
behavior which resulted in hazards to the community" and her "previous determined
efforts to escape," the superior court found that J.N. had "not shown that the law was
clearly established that Officer Virg-In should have known that his two uses of the [t]aser
during the incident would violate [J.N.'s] constitutional rights."
The superior court then explained that even in the absence of clearly
established law, "[i]f an officer's conduct is so extreme that any reasonable officer would
know the force used was excessive, the officer cannot be shielded by qualified
immunity." The superior court concluded, however, that Officer Virg-In's conduct in
response to J.N.'s "reckless behavior" and previous "determined efforts to escape" was
7 See AS 11.81.370(a) ("In addition to using force justified under other
sections of this chapter, a peace officer may use nondeadly force and may threaten to use
deadly force when and to the extent the officer reasonably believes it necessary to make
an arrest, to terminate an escape or attempted escape from custody, or to make a lawful
stop."); AS 12.25.070 ("A peace officer or private person may not subject a person
arrested to greater restraint than is necessary and proper for the arrest and detention of
the person.").
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"not so egregious or lacking in common sense that he would have known [it was]
excessive even without the guidance of prior law." Summary judgment was granted to
Officer Virg-In.
Turning to J.N.'s negligent training or supervision claim, the superior court
concluded that "there would be a triable issue of fact as to the adequacy of training and
supervision of Kotzebue police officers as to the use of [t]asers. But for qualified
immunity, this issue would result in denial of the defendants' motion for summary
judgment on these claims." But the superior court granted the City's motion for
summary judgment on J.N.'s negligent training or supervision claim "based on the
qualified immunity of the officer." Final judgment was entered on April 29, 2009.
On June 4, 2009, Officer Virg-In and the City moved for attorney's fees
under Alaska Civil Rule 82. J.N. opposed the fees motion, contending that the amount
of fees should be modified for equitable factors under Rule 82(b)(3) and that Russell
could not be personally liable for fees because she brought the claim as J.N.'s
representative. The superior court held a hearing on attorney's fees on October 8, 2009,
and requested additional briefing on certain issues. On January 8, 2010, the superior
court ordered that the claimed fees and costs were reasonable and that Russell was
personally liable for the fees and costs awarded in the amount of $43,144.32.
J.N. appeals both the superior court's final judgment granting Officer
Virg-In and the City's motions for summary judgment and the award of attorney's fees
and costs.
III. STANDARD OF REVIEW
"We review [a] grant of summary judgment de novo, reading the record in
the light most favorable to the non-moving party and making all reasonable inferences
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in its favor."8 We "will affirm a grant of summary judgment when there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law."9
"The applicability of both state and federal immunity are questions of law
that are . . . subject to de novo review."10 Under the de novo standard of review, we will
"apply our independent judgment to questions of law, adopting the rule of law most
persuasive in light of precedent, reason, and policy."11
IV. DISCUSSION
A. Qualified Immunity And Claims Of Excessive Force
Qualified immunity shields public officials from civil liability "insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known."12 The purpose of qualified immunity is
to "balance[] two important interests - the need to hold public officials accountable
when they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably."13 Whether officials
8 Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010) (internal quotation
marks omitted).
9 Id.
10 Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008).
11 Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
177 P.3d 1181, 1184 (Alaska 2008) (internal quotation marks omitted).
12 Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)); see also Brosseau v. Haugen, 543 U.S. 194, 198
(2004) ("Qualified immunity shields an officer from suit when she makes a decision that,
even if constitutionally deficient, reasonably misapprehends the law governing the
circumstances she confronted.").
13 Pearson, 129 S. Ct. at 815.
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perform their duties reasonably "is judged against the backdrop of the law at the time of
the conduct" because "the focus is on whether the officer had fair notice that her conduct
was unlawful."14 Qualified immunity is intended to protect "all but the plainly
incompetent or those who knowingly violate the law."15
Alaska statutes provide that a police officer "may not subject a person
arrested to greater restraint than is necessary and proper for the arrest and detention of
the person"16 and allows an officer to "use nondeadly force and [] threaten to use deadly
force when and to the extent the officer reasonably believes it necessary to make an
arrest, to terminate an escape or attempted escape from custody, or to make a lawful
stop."17 The use of excessive force is thus a statutory violation and may also run afoul
of the Fourth Amendment to the United States Constitution and article I, section 14 of
the Alaska Constitution, both of which grant citizens a right "to be secure in their
persons" and protect against "unreasonable searches and seizures." Pursuant to federal
law, whether a police officer uses excessive force in making an arrest depends on the
gravity of the intrusion (the type and amount of force inflicted) balanced against the
government's need for that intrusion (as measured by the severity of the crime, whether
the suspect posed an immediate threat to the officer's or the public's safety, and whether
the suspect was resisting arrest or attempting to escape).18 The standard for excessive
14 Brosseau, 543 U.S. at 198.
15 Malley v. Briggs, 475 U.S. 335, 341 (1986).
16 AS 12.25.070.
17 AS 11.81.370(a).
18 See, e.g., Espinosa v. City & County of San Francisco, 598 F.3d 528, 537
(9th Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)) (other internal
citations omitted).
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force in Alaska is nearly identical - the three considerations that frame the excessive
force inquiry are the severity of the crime, whether the suspect immediately threatens the
safety of the police or others, and whether the suspect is actively resisting or fleeing
arrest.19
Police officers, like other public officials, are protected by qualified
immunity when they exercise discretionary functions.20 Alaska Statute 09.65.070(d)
provides for statutory immunity:
An action for damages may not be brought against a
municipality or any of its agents, officers, or employees if the
claim . . . (2) is based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
by a municipality or its agents, officers, or employees.
We have added that Alaska "usually follows federal case law in the area of qualified
immunity."21
In 2001 the United States Supreme Court in Saucier v. Katz announced a
new federal qualified immunity standard.22 The Court clarified that a decision on
19 Samaniego v. City of Kodiak, 2 P.3d 78, 86 (Alaska 2000) (concluding that
the federal framework from Graham is "persuasive" and "adopt[ing] it as an elaboration
of [Alaska's] common-law standard of reasonable force"), overruled in part by Sheldon
v. City of Ambler, 178 P.3d 459 (Alaska 2008); see also Wasserman v. Bartholomew, 38
P.3d 1162, 1169-70 (Alaska 2002) (approving a trial court's use of Graham's "objective
reasonableness" test in an excessive force case brought under state law).
20 Samaniego, 2 P.3d at 83 (defining "discretionary" actions as "those that
require personal deliberation, decision and judgment"); accord Saucier v. Katz, 533 U.S.
194, 203 (2001) (noting that "qualified immunity applie[s] in the Fourth Amendment
context just as it would for any other claim of official misconduct"), overruled in part
by Pearson v. Callahan, 129 S. Ct. 808 (2009).
21 Sheldon, 178 P.3d at 463.
22 533 U.S. 194 (2001).
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qualified immunity "should be made early in the proceedings"23 because it is "an
entitlement not to stand trial or face the other burdens of litigation."24 Saucier set out a
two-part test for determining entitlement to qualified immunity: (1) whether the facts
alleged show that the officer's conduct violated a constitutional right; and (2) whether
the right was "clearly established," meaning that "it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted."25 A later United
States Supreme Court decision held that courts have the discretion to address either of
the Saucier prongs first.26
In 2008, partially in response to Saucier, we "reexamine[d] our previous
decisions on qualified immunity and [] clarif[ied] the standard for granting immunity to
police officers" accused of using excessive force.27 We held that an officer is entitled to
qualified immunity if the officer's conduct was an objectively reasonable use of force or
the officer reasonably believed that the conduct was lawful.28 We have explained that
23 Id. at 200.
24 Id. at 200 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
25 Id. at 201-02; see also id. at 205 (describing the inquiries as the
"reasonableness of the officer's belief as to the appropriate level of force" and whether
the officer made a "reasonable mistake[] . . . as to the legal constraints on particular
police conduct").
26 Pearson, 129 S. Ct. at 818.
27 Sheldon, 178 P.3d at 463.
28 Id. at 463-64 ("[T]he United States Supreme Court emphasized that in
deciding whether an officer is eligible for qualified immunity one must not merely look
to whether an officer's actions were objectively reasonable, but also to whether the
officer might have reasonably believed that his actions were reasonable.") (citing
Saucier, 533 U.S. at 205); see also Olson v. City of Hooper Bay, 251 P.3d 1024, 1031
(continued...)
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"[t]his test recognizes that there may bebehavior that is objectively unreasonable but that
nonetheless an officer might have reasonably believed was reasonable. If this is the case,
then the officer should be entitled to qualified immunity for his behavior."29 Under the
second part of the inquiry, the reasonableness of an officer's belief that his conduct was
lawful depends on whether a reasonable officer would have been "on notice" that his
particular use of force would be unlawful.30 An officer may be on notice that his
particular use of force was unlawful either because closely analogous cases, laws, or
regulations suggest that the conduct is unlawful, or because the conduct was so egregious
that any reasonable officer would have known that it was unlawful.31
In considering whether an officer could have reasonably believed that his
conduct was lawful because he was not on notice that his particular use of force was
excessive, we have directed trial courts to "look to our own jurisdiction and other
jurisdictions to see if there are any cases, laws, or regulations which would suggest that
the type of action taken by the officer is considered unlawful."32 We explained in
Sheldon that these cases, laws, and regulations must be relevant to "specific actions taken
in specific circumstances,"33 following the United States Supreme Court's direction in
Saucier that the question whether a reasonable officer would have been on notice that his
conduct was unlawful "must be undertaken in light of the specific context of the case, not
28 (...continued)
(Alaska 2011).
29 Sheldon, 178 P.3d at 463.
30 Id. at 463 (citing Saucier, 533 U.S. at 202).
31 See id. at 463, 465-67.
32 Id. at 466.
33 Id. at 466 (citing Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004)).
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as a broad general proposition."34 But we cautioned in Sheldon against extremes,
directing that trial courts should neither rely solely on the broad, general use of force
statutes nor require that prior case law, statutes, or regulations discuss the appropriate use
of force in an identical factual scenario.35 We recognized that trial courts should not
"go[] too far" by determining that "each situation, in its particularity, could not have been
anticipated by any law or regulation, so an officer could never be on notice that this use
of force in this set of circumstances could be unlawful."36
We added in Sheldon that some conduct is "so egregious, so excessive" that
any reasonable officer would have known that it was unlawful even in the absence of
closely analogous case law.37 Cautioning that "[o]ne should not let the lack of explicit
law in an area be a substitute for the reasonable officer's common sense," we explained
that some conduct is so "shocking" that "the nature of the act [gives] sufficient warning
34 Saucier, 533 U.S. at 201; see also Ashcroft v. Al-Kidd, No. 10-98 __ S. Ct.
____, 2011 WL 2119110, at *7-9 (May 31, 2011) (describing the required case law
necessary to put a government official on notice that particular conduct is unlawful as
either "controlling authority" or "a robust consensus of cases of persuasive authority")
(internal quotation marks omitted).
35 Sheldon, 178 P.3d at 466; see also Olson v. City of Hooper Bay, 251 P.3d
1024, 1037 (Alaska 2011) ("General excessive force statutes are insufficient to provide
this notice; cases that deal with the specific actions taken by police officers are
persuasive.").
36 Sheldon, 178 P.3d at 466; see also Hope v. Pelzer, 536 U.S. 730, 739-41,
743-44 (2002) (explaining that officials may be on notice that their conduct violates
established law even in novel factual circumstances and that a relevant prior decision
may provide adequate notice not only with its holding, but also by its reasoning, or when
the "premise" of the case "has clear applicability" to a subsequent set of facts).
37 Sheldon, 178 P.3d at 467; see also Olson, 251 P.3d at 1040-41 (concluding
that it was plain error for a superior court not to address "whether the nature of the
officers' actions, alone, provides notice that the force they used became excessive at
some point in the sequence of events").
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that [the conduct is] excessive."38 Federal courts have agreed that certain conduct is "so
egregious that any reasonable person would have recognized a constitutional violation"39
and that "even if there is no closely analogous case law, a right can be clearly established
on the basis of common sense."40 As stated by the Seventh Circuit Court of Appeals,
qualified immunity should be denied even "without identifying a closely analogous case
if . . . the force used was so plainly excessive that the police officers should have been
on notice that they were violating the Fourth Amendment" because "police officers
should not be shielded from liability just because their excessive use of force happens to
be original."41
B. Officer Virg-In Is Not Entitled To Qualified Immunity On Summary
Judgment.
J.N.'s primary argument on appeal is that the superior court erroneously
granted qualified immunity to Officer Virg-In on summary judgment. J.N. emphasizes
that the superior court found triable issues of fact that would preclude summary judgment
on the question whether Officer Virg-In acted reasonably during the taser incident. She
contends that it was error for the superior court to grant Officer Virg-In qualified
immunity both because existing law would have put Officer Virg-In on notice that his
use of force was excessive and because his conduct was "so egregious that it would
eliminate the need for clearly established law." Officer Virg-In defends the superior
court's grant of qualified immunity, citing the "silence" in the case law prior to July 2003
38 Sheldon, 178 P.3d at 467.
39 Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir. 1985).
40 Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001) (internal quotation
marks omitted).
41 Rice v. Burks, 999 F.2d 1172, 1174 (7th Cir. 1993) (internal citations
omitted).
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and maintaining that "no cognizable legal precedent prior to July 29, 2003 [] would have
put [him] on notice that the use of a [t]aser in this situation was prohibited, unlawful
conduct for a police officer."
We have recognized the desirability of determining an officer's entitlement
to qualified immunity early in a case, such as on summary judgment.42 In some cases,
however, disputed material facts will prevent summary judgment on qualified immunity
grounds because a fact-finder must resolve these disputed facts.43 We conclude that this
is such a case. The superior court's summary grant of qualified immunity cannot stand
because an officer's multiple uses of a taser on a non-threatening, compliant, 11-year-old
girl suspected of traffic violations could be so egregious, such an obvious violation, that
42 Crawford v. Kemp, 139 P.3d 1249, 1255 n.11 (Alaska 2006) (stating that
"ordinarily immunity questions should be decided long before trial" because "[o]fficial
immunity shelters the state and government officials from all aspects of a lawsuit . . . ;
it is not solely a shelter from liability").
We have explained, however, that a defendant may "be deemed immune at
the conclusion of trial" even where the defendant is not entitled to qualified immunity
in a preliminary proceeding; at the trial immunity serves as a "mere defense to liability."
Olson, 251 P.3d at 1031 n.24 (citing Acevedo-Garcia v. Monroig, 351 F.3d 547, 562 n.6
(1st Cir. 2003)); see also Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011) ("A qualified
immunity defense, of course, does not vanish when a [] court declines to rule on the plea
summarily. The plea remains available to the defending officials at trial; but at that
stage, the defense must be evaluated in light of the character and quality of the evidence
received in court.").
43 See Crawford, 139 P.3d at 1256, 1258 ("Although we recognize the policy
in favor of deciding immunity issues prior to trial in order to insulate officers from claims
based on reasonable mistakes. . . . [w]hether a reasonable officer could have believed that
the arrest was lawful depends on the resolution of factual disputes as to what
transpired."); see also Curley v. Klem, 499 F.3d 199, 208 (3d Cir. 2007) (acknowledging
that "the Supreme Court has instructed that immunity ordinarily should be decided by the
court long before trial" and agreeing "[t]hat is well and good when there are no factual
issues in a case" but explaining that "often the facts are intensely disputed, and . . . such
disputes must be resolved by a jury after a trial").
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any reasonable officer would have known that the conduct was unlawful.44 Here, there
is a factual dispute whether, among other things, J.N. was fully compliant and had
completely ceased her efforts to flee. This, and perhaps other disputed material facts,
must be resolved at trial before the egregiousness of Officer Virg-In's conduct and his
entitlement to qualified immunity can be determined.
1. As of July 2003, there was no law specifically governing the use
of tasers in these circumstances that was sufficient to put Officer
Virg-In on notice that his conduct was unlawful.
J.N. urges that the lawful use of tasers was clearly established by July 2003
such that Officer Virg-In reasonably should have known that his conduct was unlawful.
J.N. asserts that pre-2003 case law from other jurisdictions, although not specifically
addressing tasers, established that "it was unlawful to use force on an individual who was
being compliant and no longer resisting the officer."45
We conclude that as of July 2003 there was no closely analogous case law
specifically regarding the use of tasers under these circumstances that was sufficient to
put Officer Virg-In on notice that his conduct was unlawful. Here, as in Sheldon, "the
lack of evidence from other jurisdictions that [the type of force at issue] would be
unlawful is telling."46 As the Ninth Circuit Court of Appeals recently observed, "[t]he
44 Our decision does not preclude the availability of qualified immunity at
some later stage in this litigation. See supra note 42.
45 In her opposition to summary judgment, J.N. brought to the attention of the
superior court only one pre-2003 case related to the use of tasers. See Russo v. City of
Cincinnati, 953 F.2d 1036, 1044-45 (6th Cir. 1992) (finding that the use of a taser on a
person holding knives and threatening to kill himself and officers was reasonable).
46 Sheldon v. City of Ambler, 178 P.3d 459, 466-67 (Alaska 2008) (finding it
"persuasive" that "there is no clear case or law or regulation from Alaska, or from
anywhere else," saying that the officer's alleged conduct in the circumstances was
(continued...)
-18- 6580
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[t]aser is a relatively new implement of force, and case law related to the [t]aser is
developing."47 In that case, the circuit court granted qualified immunity to an officer who
used a taser to arrest a 21-year-old suspected of a seatbelt violation who was clearly
unarmed, was not threatening, and did not attempt to flee, despite holding that the officer
used unconstitutionally excessive force.48 Similarly, in Olson v. City of Hooper Bay, we
recently affirmed the trial court's decision that existing case law addressing the use of
tasers in December 2006 did not provide officers with notice that their multiple uses of
a taser was excessive force, rejecting arguments that an unpublished summary judgment
order, several unreported cases from outside of Alaska, or published case law on other
types of force could provide the necessary notice.49
We recognize that there was not a complete dearth of case law on the use
of tasers as of July 2003. As J.N. points out in her reply brief, our 2000 decision in
Samaniego v. City of Kodiak involved an excessive force claim and the use of a "stun
46 (...continued)
excessive force).
47 Bryan v. MacPherson, 630 F.3d 805, 833 (9th Cir. 2010) (quoting Brown
v. City of Golden Valley, 574 F.3d 491, 498 n.5 (8th Cir. 2009) and adding that two other
Ninth Circuit panels have recently "concluded that the law regarding tasers is not
sufficiently clearly established to warrant denying officers qualified immunity").
48 Id. at 832-33.
49 251 P.3d 1024, 1037-39 (Alaska 2011) (adding that both the plaintiff and
the defendants "acknowledge that there was a lack of published case law on the objective
reasonableness of taser usage prior to December 26, 2006" and agreeing with the superior
court that "jurisprudence on claims of excessive force involving [t]asers was either
unclear or nonexistent at the time of [plaintiff's] arrest") (internal quotation marks
omitted).
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gun."50 J.N. urges that as a result of this case, "the law in Alaska was clearly established
as of July 2003." In Samaniego, officers applied a "stun gun" five times to a female
arrestee's neck after she had been at leastpartially handcuffed; the officers also threw her
against a car, causing her to strike her head on it, and brought her to the ground and
kneeled on her back and neck.51 We summarized that (1) the arrestee had committed
only minor crimes of disorderly conduct and resisting arrest; (2) she put up some
resistance to arrest, but did not strike the officers or flee; and (3) there was no immediate
threat to the officer's safety.52 Under these circumstances, we determined that a
reasonable jury could have found that the officer's use of force was excessive.53 But
because we evaluated the claim of excessive force as comprising the totality of the
officer's actions, which included multiple uses of other force besides a "stun gun,"
Samaniego standing alone was insufficient to provide notice to Officer Virg-In that using
a taser twice on J.N. was unlawful.54
50 2 P.3d 78 (Alaska 2000).
51 Id. at 81-82.
52 Id. at 86.
53 Id. at 86-87.
54 See Olson, 251 P.3d at 1039.
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2. Disputed material facts preclude a summary judgment
determination on the question whether Officer Virg-In's
conduct was so egregious that any reasonable officer would have
known that it was an unlawful use of force.
In some situations qualified immunity should be denied because the
officer's particular use of force was so egregious, such an obvious violation, that any
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reasonable officer would have known that the conduct was unlawful.55 The superior
court acknowledged this aspect of the qualified immunity analysis but found that Officer
Virg-In's conduct was "not so egregious or lacking in common sense that he would have
known [that it was] excessive even without the guidance of prior law." As stated by the
superior court, when factual inferences are made in J.N.'s favor, "Officer Virg-In
approached and used a [t]aser twice on an 11 year-old girl [] who had already been
stopped . . . had ceased her earlier extensive efforts to escape . . . and [] had not used
aggressive or threatening behavior in her attempt to escape arrest." And it is undisputed
that Officer Virg-In's second use of the taser in "direct contact stun mode" occurred
when he had J.N. in hand - he was holding on to J.N.'s elbow as he tased her.56 Based
on these facts, J.N. counters that "no authority is required to show that the use of a [t]aser
on a 1[1]-year-old girl who was no longer resisting, was excessive and unnecessary" and
that "the exceptional circumstances of this case, which are the gratuitous use of force on
a child, eliminates the need for prior, clearly established law."
Federal courts have found a variety of conduct sufficiently egregious and
excessive to preclude qualified immunity even without closely analogous case law.57
55 See supra Part IV.A.
56 When an officer uses multiple applications of nondeadly force and the
question of excessive force turns on the number of times force is applied, a court may
consider each sequential application of force. Olson, 251 P.3d at 1036 (citing Beaver v.
City of Federal Way, 507 F. Supp. 2d 1137, 1144-45 (W.D. Wash. 2007)). Or, a court
may evaluate all applications of force together to determine "whether the entirety of the
force used was reasonable." Samaniego, 2 P.3d at 85-86.
57 E.g., Hope v. Pelzer, 536 U.S. 730, 738, 745 (2002) (handcuffing a prisoner
to a hitching post for seven hours without water or bathroom breaks); Asociacion de
Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 60-61 (1st Cir. 2008) (beating and
pepper-spraying non-threatening people to force them to exit a private area); Jones v.
(continued...)
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Most relevant here is a 2006 case from the Eleventh Circuit Court of Appeals denying
qualified immunity for an officer who handcuffed a nine-year-old girl who had initially
disobeyed and verbally threatened to hit a teacher but then complied with the teacher's
orders.58 The circuit court reasoned that because the girl was not threatening the teacher
or the officer, the act of handcuffing was "an attempt to punish" the girl and was
"excessively intrusive given [the girl's] young age and the fact that it was not done to
protect anyone's safety."59 The Eleventh Circuit stated that "[e]ven in the absence of
factually similar case law, an official can have fair warning that his conduct is
unconstitutional when the constitutional violation is obvious"60 and concluded that the
officer's "conduct in handcuffing [] a compliant, nine-year-old girl for the sole purpose
of punishing her was an obvious violation of [her] Fourth Amendment rights."61 In
57 (...continued)
City of Cincinnati, 521 F.3d 555, 559-60 (6th Cir. 2008) (striking an unresisting suspect
with a baton, putting pressure on his back, and using chemical irritants); Jennings v.
Jones, 499 F.3d 2, 16-17 (1st Cir. 2007) (increasing force to the point of breaking an
arrestees's ankle after the arrestee had been forcibly restrained and had stopped resisting
arrest); Motley v. Parks, 432 F.3d 1072, 1088-89 (9th Cir. 2005) (en banc) (holding an
infant at gunpoint); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052,
1061-62 (9th Cir. 2003) (kneeling on the back and neck of a compliant detainee after he
complained that he was choking); Lee v. Ferraro, 284 F.3d 1188, 1198-99 (11th Cir.
2002) (slamming an arrestee's head against the trunk of a car after arrestee was
handcuffed); Priester v. City of Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000)
(allowing (or ordering) a dog to attack a non-resisting arrestee).
58 Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1306-08 (11th Cir. 2006).
59 Id. at 1306.
60 Id. at 1306-07 (citing United States v. Lanier, 520 U.S. 259, 271 (1997)).
61 Id. at 1307; see also C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1170, 1184
(E.D. Cal. 2010) (refusing to grant qualified immunity to officer who handcuffed a
(continued...)
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another case involving a child, the Seventh Circuit Court of Appeals held that, even in
the absence of a factually similar case, an officer was not entitled to qualified immunity
where he held a gun to the head of a nine-year-old child and threatened to pull the trigger
when the child was not resisting arrest or trying to flee.62
Moreover, although we acknowledge that in July 2003 there was no case
law specifically addressing the use of tasers sufficient to put Officer Virg-In on notice
that his conduct was unlawful, other general principles regarding appropriate force
certainly existed.63 As the United States Supreme Court has explained, while "the
61 (...continued)
disabled student who had been disruptive but posed no danger to anyone and was no
longer acting out of control when the officer arrived).
62 McDonald v. Haskins, 966 F.2d 292, 293-95 (7th Cir. 1992) (elaborating
that the fact that the boy was not under arrest, that the officer threatened to pull the gun's
trigger, and that the boy was "only nine years old," were "the very ingredients relevant
to an excessive force inquiry" and concluding that "[i]t should have been obvious to [the
officer] that his threat of deadly force . . . was objectively unreasonable given . . . the fact
that the victim, a child, was neither a suspect nor attempting to evade the officers or
posing any other threat.").
63 While not available to inform Officer Virg-In's conduct, post-2003
excessive force cases involving tasers rely on these same principles to evaluate when an
officer's use of a taser is reasonable. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th
Cir. 2010) (stating that the most important issue in determining whether taser use is
excessive force is whether the suspect was an "immediate threat to the safety of the
officers or others"); Kijowski v. City of Niles, 372 F. App'x 595, 601 (6th Cir. 2010)
(unpublished) (holding that "the right to be free from physical force when one is not
resisting the police is a clearly established right" and "[a]gainst the backdrop of existing
law, [the officer] could not reasonably have believed that use of a [t]aser on a non-
resistant subject was lawful"); Cavanaugh v. Woods Cross City, 625 F.3d 661, 665-67
(10th Cir. 2010) (denying an officer qualified immunity and holding that it was "clearly
established" that the officer "could not use his [t]aser on a nonviolent misdemeanant who
did not pose a threat and was not resisting or evading arrest without first giving a
(continued...)
-24- 6580
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general proposition that use of force is [unconstitutional] if it is excessive under objective
standards of reasonableness" is normally "not enough,"64 in an "obvious case" this
principle alone can give an officer notice that a particular use of force is excessive.65
There is no question that there is (and was in 2003) a clearly established right to be free
from excessive force during arrest.66 Moreover, the use of force is least justified against
63 (...continued)
warning"); Brown v. City of Golden Valley, 574 F.3d 491, 493, 499 (8th Cir. 2009)
(holding that the law was sufficiently clear as of October 2005 to inform a reasonable
officer "that it was unlawful to [t]aser a nonviolent, suspected misdemeanant who was
not fleeing or resisting arrest, who posed little to no threat to anyone's safety, and whose
only noncompliance with the officer's commands was to disobey two orders to end her
phone call to a 911 operator"); Azevedo v. City of Fresno, No. 1:09-CV-375, 2011 WL
284637, at *9 (E.D. Cal. Jan. 25, 2011) ("Given the nature of the use of force, something
more than nonviolent misdemeanors must be at play to justify its use. While Azevedo
was clearly in flight when [the officer] deployed the taser, the Court cannot say as a
matter of law that Azevedo's flight made use of the taser reasonable."); Odom v. Maffeo,
No. 3:08-cv-1569, ___ F. Supp. 2d ___ 2011 WL 283946, at *10 (D. Conn. Jan. 24,
2011) ("In sum, the use of a [t]aser is a significant use of force, and a reasonable jury
could well find that its repeated deployment on an individual who is suspected of only
minor traffic infractions, poses no immediate threat, is not attempting to escape, and has
indicated that she suffers from a brain injury constitutes an excessive and unreasonable
use of force."). But see Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11th Cir. 2004)
(deciding that the single tasering of an arrestee after a traffic stop was "reasonably
proportionate to the difficult, tense and uncertain situation that [the officer] faced . . . [the
arrestee] was hostile, belligerent, and uncooperative").
64 Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004).
65 Id. at 199; see also Hope v. Pelzer, 536 U.S. 730, 740-41, 745-46 (2002)
(reasoning that "general statements of the law are not inherently incapable of giving fair
and clear warning" and adding that the "obvious cruelty inherent" in the practice of tying
a prisoner to a post "should have provided respondents with some notice" that the
conduct was an Eighth Amendment violation).
66 See Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
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nonviolent misdemeanants who are not fleeing or actively resisting arrest67 and who do
not "pose[] an immediate threat to the safety of the officers or others."68 And as the
Ninth Circuit Court of Appeals explained in 2001, "[w]here there is no need for force,
any force used is constitutionally unreasonable."69 Finally, J.N.'s young age contributes
to the unreasonableness of Officer Virg-In's conduct, especially because tasers may
cause increased harm to children.70 We agree with Officer Virg-In and the City that
post-2003 cases indicate that the use of a taser on a juvenile is not always an excessive
use of force, but these cases do not support that an officer may use a taser on an
11-year-old girl charged with a traffic offense who is not resisting arrest and does not
present a threat to the officers.71
67 See Graham v. Connor, 490 U.S. 386, 395-96 (1989).
68 Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994).
69 Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001) (quotation marks
omitted).
70 J.N. attached to her opposition to summary judgment a paper from the
International Association of Chiefs of Police National Law Enforcement Policy Center,
originally published in 1996, which notes that the model policy on tasers "includes in the
population of 'susceptible' individuals . . . children . . . and persons of small stature,
regardless of age." For such "susceptible" persons, "[a]dded caution may be warranted
when using [tasers] . . . just as added caution would normally be recommended when
using OC [pepper] spray or similar nondeadly force weapons."
71 See RT v. Cincinnati Pub. Sch., No. 1:05cv605, 2006 WL 3833519, at *2
(S.D. Ohio Dec. 29, 2006) (finding use of a taser not excessive where a minor was
kicking, screaming, jerking, biting and otherwise resisting arrest and was warned before
being tased a single time); N.A. ex rel. Ainsworth v. Inabinett, No. 2:05-CV-740, 2006
WL 2709850, at *1, 5-6 (M.D. Ala. Sept. 20, 2006) (determining that using a taser one
time to subdue a mentally unstable, suicidal, and otherwise violent and threatening
16-year-old minor after attempting alternative means and giving a warning was not
excessive); Maiorano ex rel. Maiorano v. Santiago, No. 6:05-cv-107-Orl-19KRS, 2006
(continued...)
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----------------------- Page 27-----------------------
We recognize that there are factual disputes regarding whether, for example,
J.N. was fully non-resistant and compliant before Officer Virg-In first deployed the
taser's probes. J.N. testified that she "stopped right away" after she was grabbed by
another teenager on the street and was "face to face" with Officer Virg-In, "wait[ing] for
him" when he first used his taser. Multiple uses of a taser on a non-threatening
11-year-old girl suspected of traffic violations, who was no longer resisting or attempting
to flee, could be sufficiently egregious to put any reasonable officer on notice that the
conduct was unlawful. Thus, the superior court's grant of qualified immunity on
summary judgment cannot stand and the relevant disputed facts must be resolved at trial.
C. The City Of Kotzebue Is Not Entitled To Summary Judgment.
The superior court granted the City's summary judgment motion,
dismissing J.N.'s claims for improper and negligent training or supervision, "based on
[Officer Virg-In's] qualified immunity" and "the lack of a constitutional violation." We
agree with the superior court that to the extent that J.N. sought to hold the City jointly
and severally liable for Officer Virg-In's conduct, the City would be entitled to statutory
immunity under Alaska law predicated on a determination that Officer Virg-In has
71 (...continued)
WL 2024951, at *2, 10 (M.D. Fla. July 15, 2006) (concluding that using a taser on
fighting high school students in a school with suspected gang-related violence and
possible weapons was not excessive); Johnson v. City of Lincoln Park, 434 F. Supp. 2d
467, 469-70, 479-80 (E.D. Mich. 2006) (finding it not excessive to taser a 14-year-old
minor who was handcuffed but still resisting arrest, including trying to head butt and bite
the officer, where the officer gave a warning and did not use the taser after the minor
stopped struggling). But see Michaels v. City of Vermillion, 539 F. Supp. 2d 975, 977-
79, 989-90 (N.D. Ohio 2008) (holding that an officer was not entitled to qualified
immunity from claims that he used a taser 25 times after placing a 17-year-old arrestee
accused of vandalism in handcuffs and stating that "the right of people who pose no
safety risk to the police to be free from gratuitous violence during arrest" was clearly
established).
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qualified immunity.72 Because we reverse the summary judgment grant of qualified
immunity to Officer Virg-In, dismissal of the City from a claim of joint and several
liability must be reversed as well.
However, J.N.'s claim of improper and negligent training or supervision,
lodged solely against the City, should not have been dismissed because it is a separate
claim charging the City with direct liability.73 As counsel for the City explained, "the
claim against the city is a claim for improper and negligent supervision and training.
This is a direct liability claim."74 Officer Virg-In's entitlement to qualified immunity
72 See Estate of Logusak v. City of Togiak, 185 P.3d 103, 109-10 (Alaska
2008) (holding that because city police officers "acted reasonably in performing [a]
discretionary act" the city was "immune under discretionary function official
immunity"); Sheldon v. City of Ambler, 178 P.3d 459, 461 (Alaska 2008) (equating the
officer and the city for purposes of entitlement to qualified immunity when plaintiff sued
both for excessive force in violation of Alaska statutes); see also Pauley v. Anchorage
Sch. Dist., 31 P.3d 1284, 1285-86 (Alaska 2001) (granting qualified immunity to a school
district after the school principal released a child to a non-custodial parent because the
principal's act was discretionary and entitled to qualified immunity). Nor would the City
have been liable on a respondeat superior theory had J.N. argued a § 1983 claim, though
the City may have been directly liable if it inflicted a constitutional injury. See
Hildebrandt v. City of Fairbanks (Hildebrandt II), 957 P.2d 974, 977 (Alaska 1998) ("A
municipality may be directly responsible under § 1983 when an employee executes a
governmental policy or custom that inflicts constitutional injury.") (citing Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)); see also Monell, 436
U.S. at 690-91 (holding that "Congress did intend municipalities . . . to be included
among those persons to whom § 1983 applies" but that "a municipality cannot be held
liable under § 1983 on a respondeat superior theory").
73 Again, it is unclear whether J.N. intended to plead a federal constitutional
claim against the City. See supra note 5 and accompanying text.
74 Counsel for the City added, "[T]here [are] really two defendants and there
are two issues that have been raised by the pleadings filed by the defendants. First is the
issue of qualified immunity for Officer Virg-In, and second is the issue of summary
(continued...)
-28- 6580
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would not provide the City with any type of "derivative" immunity from this separate,
direct-liability claim.75
Finally, because it may affect the proceedings on remand, we wish to clarify
that it is incorrect to equate a grant of qualified immunity with a finding of no
constitutional violation. In City of Los Angeles v. Heller, the United States Supreme
Court explained that finding in favor of an officer sued for excessive force "was
conclusive not only as to [the officer], but also as to the city," reasoning that "if the
[officer] inflicted no constitutional injury on respondent, it is inconceivable that [the city]
could be liable to respondent."76 But a careful distinction must be drawn between
situations where an officer is found not liable because the conduct was not a
74 (...continued)
judgment for the City of Kotzebue on the separate issue of training and supervision."
75 See Sheldon, 178 P.3d at 467 (addressing plaintiff's state law failure to train
claim against the city even after affirming a grant of qualified immunity to the officer,
though not reaching the merits of the claim because the claim was waived); Prentzel v.
State, Dep't of Pub. Safety (Prentzel II), 169 P.3d 573, 589-91 (Alaska 2007) (concluding
that officers were entitled to statutory and common law qualified immunity on plaintiff's
state law and § 1983 claims but still considering plaintiff's § 1983 and state law
negligence claim against supervisors and the State for failure to train).
Nor is the City likely entitled to statutory immunity on its own behalf under
AS 09.65.070(d). Statutory immunity is available to municipalities for their
"discretionary" acts, but the City does not have "discretion" to act negligently in training
its officers. See Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 976
(Alaska 2005) (clarifying that "[o]nce the state has made a planning-level decision to
undertake a project, it does not have discretion to implement that decision negligently").
In a § 1983 action, municipalities are simply not entitled to qualified
immunity under federal law. Owen v. City of Independence, 445 U.S. 622, 650, 657
(1980) (rejecting "a construction of § 1983 that would accord municipalities a qualified
immunity for their good-faith constitutional violations").
76 475 U.S. 796, 798-99 (1986).
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constitutional violation and where an officer is granted immunity because it was
reasonable for the officer to believe that his or her conduct was lawful.77 As summarized
by one treatise:
[T]he fact that a defendant official is found to be protected
from personal liability by qualified immunity because she did
not violate clearly established federal law does not protect the
municipality from liability. . . . On the other hand, if the court
finds that the individual officer is protected by qualified
immunity because she did not violate plaintiff's federal right,
this determination may lead to dismissal of the municipal
liability claim.[78]
Here, the superior court determined that there were issues of material fact
regarding whether Officer Virg-In's conduct was an excessive use of force. Thus, even
if Officer Virg-In is found to be entitled to qualified immunity because he could have
reasonably believed that his conduct was lawful, the City may still be liable on a failure
to train claim.79
77 As we have stated, "a reasonable but mistaken belief can confer immunity
on an officer even after it has been established that the officer violated a constitutional
right by behaving unreasonably." Sheldon, 178 P.3d at 463.
78 1A MARTIN A. SCHWARTZ, SECTION 1983 LITIGATION: CLAIMS AND
DEFENSES § 7.13[A] (4th ed. 2003).
79 Moreover, a determination that an officer's conductwas not a constitutional
violation will relieve a municipality from liability only in a suit under 42 U.S.C. § 1983.
Hildebrandt v. City of Fairbanks (Hildebrandt II), 957 P.2d 974, 977-78 (Alaska 1998)
("[J]oin[ing] the majority of the Courts of Appeals" and holding that "a 42 U.S.C. § 1983
claim based on a municipality's failure to train requires an underlying violation of
constitutional rights."); see also City of Canton v. Harris, 489 U.S. 378, 380 (1989)
(deciding that a city may be liable under § 1983 for "constitutional violations resulting
from its failure to train municipal employees"); Simmons v. Navajo Cnty., 609 F.3d 1011,
1021 (9th Cir. 2010) ("Because we hold that there was no underlying constitutional
violation, [plaintiff] cannot maintain a claim for municipal liability."). A federal
(continued...)
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Because the City was not entitled to immunity, we remand to the superior
court to determine whether the City is entitled to summary judgment on the merits of
J.N.'s negligent training and supervision claim.80
D. Attorney's Fees and Costs
Because we reverse the grants of summary judgment to Officer Virg-In and
the City of Kotzebue the attorney's fees and costs award is vacated. We note, however,
that the provisions applicable to any attorney's fees or costs award in this case, where
79 (...continued)
constitutional violation is not a necessary element of a state law negligence claim for
failure to train. See Prentzel II, 169 P.3d at 588-89 (evaluating the merits of plaintiff's
state law negligent training and supervision claims after finding that the officer's conduct
did not violate the Fourth Amendment); Hildebrandt II, 957 P.2d at 976 (dismissing
plaintiff's 42 U.S.C. § 1983 failure to train claim because there was no constitutional
violation by the officer but not disturbing the superior court's verdict holding the city
liable pursuant to plaintiff's state law negligence claim).
80 The superior court stated: "[T]here would be a triable issue of fact as to the
adequacy of training and supervision of Kotzebue police officers as to the use of [t]asers.
But for the qualified immunity, this issue would result in denial of the defendants'
motion for summary judgment on these claims." But because the superior court did not
grant or deny the City's motion for summary judgment on the merits, we cannot consider
the merits of the claim.
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81
Russell brought the action on behalf of her minor child as the child's guardian, are
Alaska Civil Rule 17(c)82 and AS 09.60.030.83
V. CONCLUSION
We REVERSE the superior court's summary judgment grant of qualified
immunity to Officer Virg-In and REMAND for proceedings consistent with this opinion.
We REVERSE the superior court's grant of summary judgment dismissing J.N.'s claims
against the City of Kotzebue and REMAND for proceedings consistent with this opinion.
We VACATE the attorney's fees and costs award.
81 AS 09.15.010, which creates a separate, independent parental cause of
action, does not apply here because it accounts for parents' losses resulting from injury
or death to their child. Gillispie v. Beta Const. Co., 842 P.2d 1272, 1273 (Alaska 1992);
see id. at 1273-74 (noting that the predecessor statute to AS 09.15.010 was "interpreted
as pertaining to pecuniary loss of the parent," and concluding that AS 09.15.010 is "the
appropriate vehicle for recognizing [parents' mental and emotional] loss" resulting from
the death of their child). Russell did not assert any claims on her own behalf in this
matter and so does not incur liability for attorney's fees and costs as a plaintiff.
82 Alaska Rule of Civil Procedure 17(c) provides in relevant part: "Whenever
an infant or incompetent person has a representative, such as a general guardian,
committee, conservator, or other like fiduciary, the representative may sue or defend on
behalf of the infant or incompetent person. An infant or incompetent person who does
not have a duly appointed representative may sue by a next friend or by a guardian ad
litem."
83 AS 09.60.030 provides: "When costs or disbursements are adjudged against
an infant plaintiff or incompetent, the guardian by whom the plaintiff appeared in the
action is responsible for the payment, and payment may be enforced against the guardian
as if the guardian were the actual plaintiff."
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